General Development Corporation and Gina Battaglia have moved for summary judgment on Demona Ross's claims against them under 42 U.S.C. § 1981 (1982).
*fn1"
Ross is a black female; she seeks to recover under § 1981 for (1) the defendants' constructive discharge of her, (2) their retaliation against her for complaining about their racial discrimination, (3) their policy of not recruiting or entering into employment contracts with blacks, (4) their refusal to enter into a contractual relationship with her on a nondiscriminatory basis, and (5) their policy of not marketing General Development properties to blacks. See Amended Complaint, paras. 1, 4, 11, 16.

General Development sells Florida residential real estate. It employs several layers of sales personnel. The entry-level sales position is marketing representative. Marketing representatives work on teams headed by a marketing manager. The marketing representative's sole duty is to "develop" potential customers. This means contacting prospective buyers, arranging for and making a sales presentation, and "closing" the sale. General Development compensates its marketing representatives strictly on a commission basis.

General Development hired Ross in late May 1987. Like many other marketing representatives, Ross had no prior experience in selling real estate. Ross was hired shortly after interviewing with a co-plaintiff in this case, Sandra Rushing. Rushing had a unique position at General Development, that of "Recruiting Manager" on a sales team headed by another co-plaintiff, Jack English. At the time Ross joined General Development, English and Rushing were resisting an alleged company policy against hiring or marketing to blacks.

Despite the company's alleged policy, Ross was hired and attended a three-day General Development training program with approximately twenty other marketing representatives. After completing the program, Ross met with English. Together they prepared a list of persons (a "marketing profile") whom Ross was to contact for making her sales pitch. Ross worked out of General Development's Chicago office with other marketing representatives. Like any representative, Ross had a desk, a telephone, and access to a secretary.

Battaglia allegedly blocked Ross's other attempts to make appointments and solicit customers by mail.
*fn2"
Soon thereafter English and Rushing quit General Development, allegedly in protest over the company's discriminatory policies. Just prior to his resignation English called Ross and informed her of his decision. English told Ross that he was quitting because Battaglia was forcing him to discriminate against blacks. Prior to this time Ross had not suspected that she had been the victim of discrimination.

Ross continued working for General Development for close to a week after her conversation with English. She felt during this time "like a sore thumb." Ross testifies she felt this way because "everyone already knew about what happened" with English's departure. She suggests that she believed that other employees would suspect her of having caused "all this trouble," although none of her co-workers were mean to her. All that Ross observed was reluctance among these workers to include her in conversations. One morning in late June 1987, while Ross was on her way to work, she simply "turned around and went back home and never came back." Ross Deposition 80, 105-06. Ross did not discuss her problems or those of English with anyone at General Development until September 1, 1987.

Taking everything that Ross says as true, the defendants did not make life "intolerable" for her. Ross gives only two reasons for quitting. She says first that she left because she felt that she was the reason for English and Rushing's departure. The defendants did not tell her this--she merely assumed it. Ross has brought forth no facts which demonstrate that any employee in her position would make this assumption. Moreover, even if any employee in her position would have assumed what she did, it is not reasonable for an employee to quit for this reason. As noted by the Seventh Circuit in Brooms, it is the employee's duty to try to work things out before leaving. Ross made no such effort.

Ross quit voluntarily, and thus may not recover under § 1981 for constructive discharge.
*fn3"
She also may not recover for the defendants' alleged policy of not hiring blacks, as Ross has not established harm to her as a result of this policy. Unlike those persons whom General Development did not hire as a result of its alleged policy,
*fn4"
Ross got a job with General Development. Ross also was not in the position of English and Rushing, her co-plaintiffs. English and Rushing allegedly received commissions based on the sales performance of persons whom they supervised, which gives them an interest which they can protect under § 1981. See English v. General Development Corp., 717 F. Supp. 628, 630 (N.D.Ill. 1989). By contrast, Ross has not shown that she had a monetary interest in having blacks join her sales team. She thus cannot recover from the defendants under § 1981 on account of their alleged policy of not hiring blacks.

&nbsp;The fourth and fifth aspects of Ross's § 1981 claim are that the defendants were unwilling to contract with her and with black customers on a nondiscriminatory basis. These assertions go to the very heart of § 1981, which by its terms gives persons "the same right . . . to make and enforce contracts . . . as is enjoyed by white citizens . . . ." The Supreme Court's decision in Patterson v. McLean Credit Union, 491 U.S. 164, 109 S. Ct. 2363, 105 L. Ed. 2d 132 (1989), significantly limited the protection previously thought to be available under this statute. In light of Patterson, this court has held that Ross would have a claim under § 1981 if she could demonstrate which provisions of her employment contract discriminated on the basis of race, and link "the defendants' conduct at the time they hired her [to] the harms she suffered." English, 717 F. Supp. at 632. The court explained, however, that two types of persons could challenge racial discrimination under § 1981, provided that the person could tie the discrimination to the making or enforcement of a contract. One category of plaintiffs comprises the "direct" victims of ...

Our website includes the first part of the main text of the court's opinion.
To read the entire case, you must purchase the decision for download. With purchase,
you also receive any available docket numbers, case citations or footnotes, dissents
and concurrences that accompany the decision.
Docket numbers and/or citations allow you to research a case further or to use a case in a
legal proceeding. Footnotes (if any) include details of the court's decision. If the document contains a simple affirmation or denial without discussion,
there may not be additional text.

Buy This Entire Record For
$7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.